What Is a Judge To Do?

In the course of questioning Solicitor General Elena Kagan, Sen. Tom Coburn of Oklahoma stepped in it.

Citing Blackstone, he tried to elicit from Kagan a concession that there is a natural right to keep and bear arms.

She responded, “Sen. Coburn, to be honest with you, I don’t have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.”

He followed up by asking whether she wouldn’t embrace “what the Declaration of Independence says, that we have certain God-given, inalienable rights” that aren’t the gift of government. Her response was that she didn’t deny that there were preexisting rights, but that her job as a justice would be “to enforce the Constitution and the laws.”

Apparently pretending not to have heard her, he then asked again whether she personally believed that there are inalienable rights. Her response: that regardless what she believed about people’s rights outside the Constitution and the laws, “you should not want me in any way to act on the basis of such a belief.”

Coburn, warming to the subject, said, “I would want you always to act on the basis of the belief of what our Declaration of Independence says.” She then reiterated that he should want her to do what she was to pledge to do: act on the basis of American constitutions and statutes.

Truly, for any constitutionalist, Kagan’s answer was heartening and Coburn’s, painful.

A similar exchange occurred between two Founding Father-justices in the 1798 Supreme Court case of Calder v. Bull. There, Justice Samuel Chase, who had been a prominent ratifier in Maryland, asserted that there were some types of statutes which, although consistent with the relevant constitution(s), American courts simply would not uphold. Those, he said, were violations of a natural law which underlay the American order.

Justice James Iredell, North Carolina’s leading ratifier, replied that Chase had it exactly wrong. The job of an American judge, he said, was to uphold the law. No two men agreed about what the natural law was, he said, and so that kind of issue must be worked out in the law-making bodies: constitutional conventions and legislatures.

The job of the courts was to apply the people’s solemn decisions, as instantiated in American law (including constitutions).

Iredell was obviously right: no two people do agree about the natural law. Pro-choicers say there is a natural right to control one’s body, and that that right extends to the right to abortion; pro-lifers say that the right to life is primary, and so abortion is wrong. Gay rights advocates say there is a natural right to equality, and so gay marriage should be recognized; traditional marriage proponents deny it. Capital punishment proponents say that the natural law requires that punishment in fit cases, while its opponents say that natural law bars it. And so on, through every public issue that comes to mind, all the way down to whether motorcyclists should be required to wear helmets and beauticians should have to be licensed.

One suspects that Kagan and Coburn disagree about the direction in which natural law points in more than one of the hypothetical examples above. We have heard Coburn lament many times that Supreme Court justices had imposed their views of natural law in these matters, and others.

Chase’s (that is, Coburn’s) argument, as Justice Iredell warned, would arm judicial knights errant with a powerful lance for slaying whatever dragons their lawyerly eyes espy. In America, then, such disputes are to be decided through elections. At least, until we all agree concerning the good, the true, and the moral.

So, Kagan had it right. We must hope (forlornly, I expect) that she is true to her protestations.